Kelley v. Mason

Davison, J. This was an action of debt by Mason against Kelley, upon a promissory note. The record shows that the defendant below, without appearing in the cause, moved the Court for a continuance. In support of the motion he filed his affidavit, stating, inter alia, that the summons in the cash was issued on the 24th of March, 1852, upon which the sheriff made return that he had “ served it by leaving a copy thereof at the defendant’s usual place of residence.” The term of the Court to which said writ was returnable, commenced on the 19th of April, 1852. The defendant, at the time said copy was left, was at Cincinnati, Ohio, and did not return to his residence until the 17th of said month; nor had he any notice whatever of said copy until the day after his return. The affidavit points out a variance between the writ issued by the clerk and the copy left by the sheriff. The writ is dated March 24, 1852, while the copy purports to bear date April 9, 1852. The writ has the seal of the Court, but the copy presents no appearance of a seal. The record further shows that the plaintiff admitted the facts set forth in the affidavit, and that the Court overruled the motion for a continuance of the cause, and gave judgment for the plaintiff. This motion was properly overruled. The service of the summons by leaving a copy at the defendant’s usual place of residence, was in accordance with the statute. R. S. 1843, c. 40, s. 23. There is nothing in the variance [619] between the writ and the copy. The date is not a material part of the writ, nor does the statute intend that the seal should be copied. The fact that the defendant was absent and not actually notified of the suit until one day prior to the commencement of the Court, was not, alone, sufficient cause for a continuance. Had he set up a valid defence to the action, and shown that he was unprepared for trial, his motion might have been sustained. Pendleton v. Vanausdal, 2 Ind. R. 54.—Conwell v. Atwood, id. 289. J. Robinson, for the plaintiff. A. W. PLubbard, for the defendant. Per Curiam. The judgment is affirmed, with 6 per cent, damages and costs.